Dunn v. State

• Citation: 22 S.W. 212,57 Ark. 560
• Parties: DUNN v. STATE
• Decision Date: 29 April 1893
• Court: Supreme Court of Arkansas

22 S.W. 212

57 Ark. 560

DUNN v. STATE

Supreme Court of Arkansas

April 29, 1893

Error to Independence Circuit Court, JAMES W. BUTLER, Judge.

Reversed and remanded.

F. D Fulkerson for appellant.

1. The statute does not make concealing the death of a bastard child manslaughter, but merely provides that the punishment shall be the same. Mansf. Dig. sec. 1543. No attempt is made to blend or merge the two crimes. Sec. 1544 provides that a conviction under sec. 1543 will not bar an indictment for murder. It was error to instruct the jury as to the law of manslaughter. 13 Ark. 168; 1 Bish. Cr. Law, 250.

2. The defendant was indicted for a distinct statutory crime, and the verdict was for another distinct offense--hence not responsive to the issue.

James P. Clarke, Attorney General, for appellee.

Sec 1543 merely prescribes the punishment, and does not confound or merge the offenses. 13 Ark. 168 is analogous in principle. See also 3 Wash.St. 390; 9 Met. 141; 132 Mass. 246; 1 Bish Cr. Pr. sec. 1005. The object of the legislature was to prevent the destruction of bastard issue by mothers. The corpus delicti is concealing the death of a being upon which murder could have been committed. This is the construction put upon the statute 21 James I. See 4 Hawks, 350; 57 Me. 30; 1 Bay, 167; 2 Ashm. 105; 1 Whart. Cr. Law, sec. 600.

OPINION

COCKRILL, C. J.

The appellant was indicted, under section 1543 Mansfield's Digest, for concealing the death of a bastard child. The court treated the indictment as charging the defendant with the crime of manslaughter, and the jury returned the following verdict: "We the jury find the defendant guilty of voluntary manslaughter and fix her punishment at two years in the State penitentiary." She was sentenced in accordance with the verdict.

The section under which the indictment was found comes from the Revised Statutes of 1838. That revision was not simply a collection of previous acts, but was itself an enactment by the legislature in the form presented by the publication. The syllabus, at the head of the chapter, which refers to this section, and which may be taken as in the nature of a title to the enactment, is as follows: "Mother concealing death of child to be adjudged guilty of manslaughter." The enactment itself does not contain that language, but the following: "Every such mother shall suffer the same punishment as for manslaughter." The statute was evidently taken, though not literally, from that of 21 Jac 1, c. 27, which concluded as follows: "In every such case the said mother so offending shall suffer death, as in case of murder, except etc." Bishop, Stat. Cr. sec. 764. The English courts held that this statute created no new offense, but only directed upon what evidence the mother might be convicted of murder under a common law indictment. 2 Hale's P. C. 289; Ann Davis's case, Kel. 32. The learned judge who tried this cause doubtless followed that analogy in treating the offense as a grade of homicide. But the statute does not declare that the offending mother shall be guilty of manslaughter, but only that she shall suffer punishment as for manslaughter. Section 1514, Mansfield's Digest, directs that the offense defined by the section under which the indictment is found is not to be regarded as a grade of homicide; for it declares that a conviction...